PEOPLE v. ROMAN (1999)

Judgment, Supreme Court, New York County (Herbert Adlerberg, J.), rendered March 12, 1998, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

The court properly revoked its promise that defendant, who originally pleaded guilty to a class B felony, would be permitted to replead to a class D felony with a promised sentence of 2 to 4 years, conditioned on defendant's voluntary timely return for sentencing on the scheduled date (see, People v. Figgins, 87 N.Y.2d 840, 637 N.Y.S.2d 684, 661 N.E.2d 156).   Contrary to defendant's assertion, the court did take into consideration the fact that defendant was hospitalized on the scheduled sentencing date, and thus permitted him to replead to a C felony rather than the original B felony.   While defendant's initial failure to appear for sentencing was the result of hospitalization and was thus excusable, his failure to return to court or at least contact the court upon his release a few days later, or at any time thereafter, resulting in his involuntary return over six weeks later, was unjustifiable and warranted revocation of the court's original promise.

MEMORANDUM DECISION.